I was fairly certain of my future a few days ago. I believe in the power of the law. I believe that the law is a slow-moving system, yes, but remarkably resiliant. Our courts are far more stable, true, and just than our legislature. It is ironic, of course, because our courts are the only branch that is not elected. But our courts draw on legislative, constitutional, and judicial tradition and history to apply law to our society. The court must back up each action with citation, and that is its biggest strength: it is the only branch of government that really has a firm grasp of the history of America, that can and must look back at other decisions and findings in order to interpret what is presented today. The court is conservative, meaning that it is resistant to change, but it able to take change into account and act on it.
The problems I have seen are in how the court handles new issues introduced by the internet. The internet is a fundamentally different medium, and often the old analogies do not apply. Meanwhile, our jurists, wise members of society who are generally aged, do not necessarily grasp the implications of some new technologies. We need action to change how intellectual property, fair use, free speech, interstate commerce, and free access are interpreted (not to mention acted upon by the legislature). This is what I hoped to pursue.
All this has changed now that the Supreme Court has ruled on Eldred. In one swift act, our most learned and thoughtful court has once again shown that it can fail, and fail miserably. The first notable instance for me was Bush v. Gore, in which I hoped the court could draw on its wisdom and massive knowledge and bring us to a fair and equitable and just outcome. Instead, we have a decision that any first-year legal student (or even undergrad 😉 ) can read and instantly denounce as bad law. Then we have Eldred, wherein the court simply chose to ignore the central argument of the petitioner and instead rule in favor of Congress and the huge media conglomerates, even when such a ruling is clearly wrong.
I have to ask myself — do I really want to be a lawyer when these sort of things are happening? Can I really change things when our highest court can fail so miserably? If my hero, Lawrence Lessig, cannot prevail, what hope do I have? Meanwhile, I’m taking a class called Law, Technology, and Innovation, in which the professor/lawyer confesses willingly that she doesn’t understand new technology and that such an understanding doesn’t matter for this class. The internet is no different, she says, than innovations of yore, this time is much less exciting than the 1900s and the amazing new invention of the automobile, nevermind that we had trains and horses long before then.
The internet is not a newspaper, it is not a book, it is not a town hall. It is all of those things and so much more. It is a platform for change. Marketing tool? Sure. But also peer to peer file trading, bulletin boards, news conglomeration sites, data mining, Lexis-Nexus, raw data, government reports, millions of stories and thoughts and voices all brought together in a gel that anyone can mold and modify and change and create. This is DIFFERENT, and it is worth fighting for, before the outside forces of SAMENESS destroy it’s potential. And if I can’t count on the court, to whom can I turn?